The Oil Palm

An Unfair Swipe at NCR?

Noted Dutch conservationist Erik Meijaard recently weighed in on the debate around the reform of Indonesian forest laws.

The debate revolves around the handing millions of hectares of Indonesian forest back to indigenous communities.

Indonesian land laws previously stated that forests belong to the state. However, a 2013 Constitutional Court decision declared that certain aspects of Indonesia’s forest law violated the constitution, particularly in relation to indigenous rights.

The Indonesian Environment and Forestry Ministry then issued a regulation to reallocate up to 30 percent of industrial forests and forest concession areas to indigenous owners.

Meijaard is concerned with two things. First, the risks any proposals present to levels of deforestation. Second, the need for benefits to accrue to the affected communities.

For example, Mejiaard is concerned that if Indonesian communities are handed property titles to their land, they will simply sell it to a plantation company or other developer almost immediately in return for a windfall gain rather than long-term benefits.

To bolster his argument, Meijaard cites the use of communal land titles in Malaysia as an example of how not to proceed, taking a swipe at Malaysian policy on the way:

There [in Malaysia], the government issued so called Communal Land Titles with the intention to expedite land alienation to native people, but also to ensure the development of their land. In several states of the country, these titles proved unhelpful to local communities. The issuance of these titles by the government was often implemented in association with joint venture development schemes with government agencies or corporations. The result is that in many cases, the primary beneficiaries of these communal titles were the government, development agencies and plantation companies, with communities losing their forests and earning opportunities.

It’s not entirely clear what Mejiaard is referring to; the Communal Title concept was introduced in Sabah, specifically. So, assuming he means the Sabahan native titles, the problems that he is referring to appear to relate to Sabah’s ‘fast tracking’ the issuance of communal titles if that land was to be developed for plantations or other projects. This may have resulted in negative impacts; but at the same time, this ignores one of the underlying features of communal titles in Sabah, and that is the inability to sell communal title. This has happened in the village of Gouvton, for example.

In other words, Meijaard’s problem is not with the nature of the title itself, but with the approval process and the incentives around it.

But it should also be noted that communal titles are not the main vehicle for the establishment of native customary rights across Malaysia – despite Meijaard’s commentary giving the distinct impression that it is.

What is apparently not worth mentioning is that Malaysia has made continued and repeated efforts to improve customary title, and part of this has been the parallel implementation of programs that encourage economic development.

Programs under FELDA, for example, were instrumental in giving Malaysian villagers – including many indigenous groups – land title and subsequently encouraging economic development. It has also pushed this model in the states of Sabah and Sarawak. The outcomes from the FELDA programs have been extraordinary in terms of reducing poverty.

It should be remembered also that these programs were not introduced into some sort of cadastral ‘state of grace’. Colonisation by the British had already appropriated lands and introduced titling systems that were completely foreign. Despite this, successive Malaysian governments took these legal tools – particularly the Torrens system of land titling – and produced an outcome for Malaysians that has been for the most part equitable given the incredibly diverse population in Malaysia. Consider for example the Minangkabau population in Negeri Sembilan, or the Bugis across much of the Peninsula.

And Malaysia has been proactive in terms of assisting its populations; it hasn’t waited for a court case to force it into action. This isn’t that bad for a country that’s only had independence for almost 60 years. It took Australia 90 years to introduce laws recognising native title; and customary rights still aren’t part of the Australian constitution.

Additionally, it’s one thing to have principles that recognise indigenous/customary title, but a strong cadastral and titling system – as well as a reliable legal system – is needed to underpin any claims to title, customary or otherwise. So, while it’s one thing to argue about the principles of a legal decision, the key to its success is the implementation. Malaysia’s approach to customary title may not be perfect, but it is always improving.

Meijaard’s intervention in the debate – and his criticism of the Malaysian efforts on customary title – is disappointing. Too often, Western-focused individuals will intervene in a high-handed manner, criticising the efforts of developing nations, even when those efforts are well-established, and effective. The native communities have the right to develop and use their land as they see fit; and any regulations governing that are a matter for the communities themselves and the local authorities. Lecturing communities, rather than helping them, is not a constructive contribution to the debate.